Retaining wall on boundary

Hi all,

I've recently recieved a request from my neighbour about replacing a fence and retaining wall on our boundary....this is the 3rd side in 2 years! No more after this

I have no issue with paying 50% to replace the fence, but I don't believe I should pay for the retaining wall.
I am on the higher side, and he is on the lower. It looks like land was excavated many years back to have a flat surface for his house, and hence the need for the retaining wall.

I've read the following:

Retaining walls are not classed as fences under the Neighbourhood Disputes Resolution Act 2011. Retaining walls are built to support built up or excavated earth. They are normally not a matter of joint responsibility for neighbours as they are usually benefit one neighbour more than the other.However, QCAT can make orders about fencing disputes that includes work on a retaining wall if the repair of the fence will also require work on the retaining wall.

To me that seems to support my view. Wanted to know if anyone here has dealt with this before?

 

@Frosty123 you will need to determine if the "retaining wall / fence" sits - wholly upon your lot or the adjoining lot.

I assume you will be engaging a Surveyor to identify this and mark the boundary ?

if it stands wholly upon your lot then it could be considered your responsibility

also if it is retaining your land it will be considered your responsibility.

however, as i looks relatively minor i would consider contributing to the costs as it probably benefits both parties, and the costs of professionals and dispute resolution could outway the cost of replacement.

as you have found out the laws are relevant to each state.

I have been involved in a few disputes in NSW and in some cases we have researched archived documentation to resolve (topo maps - photos - previous surveys - etc etc) it can get very expensive and complicated. These cases were for significant structures and the associated costs were in the $000's

 

It looks like a badly constructed retaining ‘wall’.

More like a fence with a double plinth board that someone has built up the soil against.

Use a proper system in the rebuild - e.g. a sleeper and metal channel system.

 

It's on the boundary of our lots (fence sitting on top).
Or are you suggesting a surveyor may be able to identify which lot it lies on (even if it is very close to the dividing line).

It is certainly retaining my land, as I'm on the higher side.

We've had a quote at $18k for the retaining wall alone.

 

correct - a Surveyor can locate the structures and report on the position relative to the boundary line.

the log ret. wall looked minor in the photo you posted, but if the cost to replace the retaining wall is substantial a survey might be needed to clarify obligations.

if the wall stands wholly upon your lot then i would think it's your responsibility.

another point to note is, if the wall stands upon the adjoining lot and is holding back your land. then you might need an "easement for support" over the wall.

now, if the neighbour wants to contribute to the replacement, then it's lucky for you.

i assume the property is in queensland, so as the laws may be different between states i would recommend you contact a licensed surveyor to discuss.

it's probably worth having the boundary marked so you know where to construct the new fence / ret.wall

 

My thoughts as well

 

As above, that doesn't look like a retaining wall at all !
Treated pine fence looks in good condition, odd that it appears to have square hardwood posts.....
Agree it looks like the neighbor may have dug down, and has put in aftermarket posts to support the fence.
How long have you been next door ?

 

I think it would be difficult to prove who dug down or built up their land if you are not both the people who built the original houses. I would go 50/50 in the costs. And as others have said, the current fence does not look like a retaining wall.

 

its complex and the law is ambiguous

in general the maintenance of a retaining wall is the responsibility of the property owner whose land the retaining wall benefits

Where both parties benefit from an existing retaining wall, then it is reasonable that both parties contribute to the maintenance of the retaining wall according to the proportion of the benefit they receive

but for existing walls, it can be difficult to know what the gradient of the natural ground level was, who actually altered it, and to what extent

however, in regards to the OP
the photos posted suggest it is barely a retaining wall of any significance (less than 600mm in height)

furthermore amendments to the Dividing Fences Act in 2008 (NSW), permit an adjoining owner to seek a contribution for the carrying out of work to a retaining wall where the wall is necessary for the support and maintenance of a dividing fence

i would think other states have followed

check with your relevant states act

 

Not sure why the OP mentions QCAT when they are in Vic ?

Not sure I agree that the lower side excavated the way described. Fence posts are generally concreted to ground level. So that is their side. But then that posts looks unusual and may have been replaced. Strange gap between posts doesnt help support the fence. s Your higher side looks like it is filled and why those poor standard boards that arent even cut to join at a post have been used. You cant install boards to retain behind earth and so the high side was backfilled. It seems the higher side is being retained. Unlike say a block retaining wall with a fence installed into it I think that retaining isnt a element of the fence. Its just a fence that needs a retaining wall. Likely both should share that problem and cost.

.If designed with base to retain the earth I wouldnt see a need for it to be too costly. Its not anything structural.

If it was owner of lower side I would consider a better retaining wall forward of the fence like this.


But for a fence line solution a basic wall under a fence will be cheaper

 

Hi Paul,

I live in VIC. This is my investment property in QLD (Logan).
We are on a very slight hill, and the contour of the land is such that I am certainly on the higher side. Both properties are on a concrete slab, and so would have required a level surface.

I found the following on a review of the neighbourhoods dispute ACT 2011.

2.246 Section 179 of the Property Law Act 1979 (Qld) attaches to land a statutory obligation not to do anything on or below the land that would withdraw support from any other land or from any building, structure or erection placed on or below it. As a result, an owner of land who excavates land (lowering its ground level) and builds a retaining wall or other measure to support the adjoining land must ensure that the wall or other measure is structurally adequate to prevent the subsidence of the adjoining land, or the collapse of the buildings or structures on it. An infringement of s 179 of the Property Law Act 1974 (Qld) is actionable in nuisance. An action in nuisance may also lie under the common law if an owner removes support from an adjoining owner’s land, causing the land to subside.

https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0007/466747/qlrc-report-72.pdf

I've found that QCAT will deal with fence disputes, but a retaining wall does not fall into this category. So I assume they can't rule on this.

Any thoughts on the above? I feel it's pretty clear that the neighbour had to cut into the land to build their property, and therefore need to maintain the retaining wall.
They're now arguing that my tenants had allowed leaves to fall onto the ground near the fence, and cause moisture to build up and rot the fence too...

 

And just to be clear - the photos provided were taken on the other property owners side.

 

That’s hilarious! They have no chance of that being accepted as an excuse.

 

After looking at the pics again, it actually looks like there's stones (fill/stone, not natural ground) coming thru from your side.

So maybe the previous owner of your property has filled the area, or even the developer/builder during construction......

Best you can hope for if the above is true the best you can hope for is a 50-50 split of costs.

It's hard when you are interstate and the next door owner lives there

 

Need to see a solicitor.
I understand a retaining wall is the responsibility of the person it benefits. In this case it would be your neighbour.

I also understand it is also supposed to constructed a certain distance inside the property boundary. A QLD builder recently told me 8 inches. but this may be wrong.

Maybe the retaining wall should be moved to correct location?

 

Bit of an update on this one.

Got a structural engineering report to confirm that my property is not affected if the retaining wall were to be removed.
I also now have proof that the retaining wall was built when his property was constructed (cutting into the land). The existing owners of my property only built a few years afte the wall was there.
The other owner got a land surveyor out, and we've now found out that the entire retaining wall and fence is on his lot (roughly 0.5m in from the boundary).

He now wants to rebuild the fence, and the retaining wall on the new established boundary (0.5m towards my property), and is saying that now my property doesn't meet the minimum 1.5m side setback of Logan council....

While he's well entitled to move the fence to the new established boundary, I wouldn't have thought he has any right to move the retaining wall (especially if it were to disturb the foundations of my building - which I'm yet to confirm if that's the case)

 

Any chance you took out title insurance when you purchased this property? This boundary realignment (if accurate) could have huge repercussions for you.

 

who is saying this - the next door owner ?
how does he know what the position of your building is relative to the boundary - is he a surveyor ?

either way, if your house doesn't comply with setback regulations then its a bit late now. - it's built !
does he suggest you pick it up and move it

as for the wall position, do you not consider he has the right to claim his land ?
and I'm still uncertain how high this retaining wall is. In the photos it barely looks to be 200-300mm high, so its unlikely to affect anything structural because you are implying your building is approximately 1.5 from the boundary

but if you are concerned, check with the council if a DA is required and/or an engineers report.

good luck with it.
you know what they say "fences make good neighbours"

 

i don't think he is implying the boundary to be realigned rather that the fence is to be reconstructed upon the true (original) boundary line position.


most fences wander on and off the boundary lines due to owners not getting the boundary marked by a Surveyor prior to erecting a new fence.

Freddy the fencer just has a guess and then that's where it goes. then in 20 years time Bobby the boiler maker gives it a shot and there you have it. the fence could have moved off the original boundary position by up to anyone's guess until someone finally gets a Surveyor to mark the boundary.